S3711

An Act concerning civil actions for certain constitutional violations and supplementing Title 10 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. This act shall be known and may be cited as the “Fight Unlawful Conduct and Keep Individuals and Communities Empowered Act.”

2. As used in this act:

“Body worn camera” shall have the same meaning as set forth in section 1 of P.L.2020, c.129 (C.40A:14-118.5).

“Crowd control equipment” means equipment that shall include, but is not limited to, kinetic impact projectiles; compressed air launchers, such as the FN303; pneumatic projectile launchers; oleoresin capsicum spray, CS gas, CN gas, or other chemical irritants; 40 millimeter munitions launchers; less-lethal shotguns; less-lethal specialty impact-chemical munitions; controlled noise and light distraction devices; and electronic control weapons.

“Facial covering” means any opaque mask, garment, helmet, headgear, or other item that conceals or obscures the facial identity of a person including, but not limited to, a balaclava, tactical mask, gaiter mask, ski mask, or any similar type of facial covering or face-shielding item, but “facial covering shall not include a medical grade mask designed to prevent the transmission of diseases; a facial covering designed to protect against exposure to smoke during a declared state of emergency related to wildfires; or protective gear used by Special Weapons and Tactics (SWAT) team officers necessary to protect from harm while performing SWAT responsibilities.

“Prevailing party” means any person, on a claim brought pursuant to this act:

a. who obtains some or all of the relief sought through a judgment rendered by the court;

b. who obtains some or all of the relief sought through any settlement agreement approved by the court; or

c. whose nonfrivolous claim was a catalyst for a unilateral change in position by the opposing party relative to the relief sought.

3. a. Any person may bring a civil action against a person who, while conducting civil immigration enforcement, knowingly engages in conduct that violates the Constitution of the United States.

b. Any person who prevails on a claim brought pursuant to this section shall be entitled to monetary damages including, but not limited to, punitive damages and damages for psychological or physical harm, reasonable attorney’s fees and costs, and any equitable and declaratory relief available under law, notwithstanding that the person may have a claim pursuant to any other statute or common law cause of action.

c. When considering an award of punitive damages against a person who committed a violation of subsection a. of this section while acting under color of federal, New Jersey, or other state law, the following factors shall be considered in determining the reprehensibility of the person’s conduct at the time of the violation:

(1) whether the person wore a facial covering;

(2) whether the person was a law enforcement officer who failed to identify or disclose the person’s identity as a law enforcement officer either verbally or by wearing identifying insignia, such as a badge, agency logo, or patch, or by providing the person’s name, badge or identification number, and employing agency or department;

(3) whether the person was a law enforcement officer who was required by State or federal law or regulation, or agency policy to wear and use a body-worn camera but failed to do so;

(4) whether the person was operating or using a motor vehicle without a license plate or with an out-of-State license plate;

(5) whether the person used crowd control equipment; or

(6) whether the person intentionally violated or failed to comply with any material term or condition of a court order or consent decree that was issued by a court, that was in effect at the time of the violation of this act, that applied to the person acting under color of law, and that was issued or entered into in part to address or prevent future violations of this act relating to the person’s conduct.

d. Qualified immunity shall be a defense to liability under this act.

4. This act shall take effect immediately.

STATEMENT

This bill establishes the “Fight Unlawful Conduct and Keep Individuals and Communities Empowered Act,” which permits civil actions for certain constitutional violations related to immigration enforcement.

Under the bill, any person may bring a civil action against a person who, while conducting civil immigration enforcement, knowingly engages in conduct that violates the Constitution of the United States.

A person who prevails on a claim brought pursuant to the bill’s provisions is to be entitled to monetary damages including, but not limited to, punitive damages and damages for psychological or physical harm, reasonable attorney’s fees and costs, and any equitable and declaratory relief available under law, notwithstanding that the person may have a claim pursuant to any other statute or common law cause of action.

When considering an award of punitive damages against a person who committed a violation while acting under color of law, the bill provides that the following factors are to be considered in determining the reprehensibility of the person’s conduct at the time of the violation:

· whether the person wore a facial covering;

· whether the person was a law enforcement officer who failed to disclose their identity as a law enforcement officer either verbally or by wearing identifying insignia;

· whether the person was a law enforcement officer who was required to wear and use a body-worn camera but failed to do so;

· whether the person was using a motor vehicle without a license plate or with an out-of-State license plate;

· whether the person used crowd control equipment at the time of the violation; or

· whether the person intentionally violated or failed to comply with any material term or condition of a court order or consent decree that was issued by a court, that was in effect at the time of the violation, that applied to the person acting under color of law, and that was issued or entered into in part to address or prevent future violations of this act relating to the person’s conduct.

Under the bill, qualified immunity is a defense to liability.